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Discretionary Appeals from Juvenile Court TPR Cases:
A 10-year retrospective, and a look to the future
Tom C. RawlingsChild Welfare Legal Academy
Barton Child Law and Policy CenterEmory University School of Law
April 21, 2015
The Past
• Direct Appeals from TPRs- around 50 published decisions per year.
– 12% reversal rate among those, 2005-2008
• 303 days on average from notice of appeal in TPR to final judgment at COA.
• “Blanket statements” of the law
– Deference to juvenile court.
– “Same factors showing deprivation show harm.”
– Were TPR cases treated as routine?
The Past
• Time from TPR to Adoption:
– Oct. 2004-Sept. 2005: 1,213 adoptions, median time from TPR to Adoption was 10.3 months.
– Oct. 2007-Sept. 2008: 1,030, median time 9 months.
ASFA: Focus on Permanency
• 1997 Adoption and Safe Families Act.
– Federal incentives to speed up permanency.
• (Disincentives – IV-E funds)
– If child has been in care 15 of the most recent 22 months, DFCS must file TPR petition unless compelling reason to do otherwise. 42 USC § 675 (5)(E)
– Incorporated into OCGA § 15-11-58 (m), now OCGA 15-11-233 (a) (1).
ASFA: Focus on Permanency
• Push all over the country to speed up permanency.
– For example, between 2003 and 2014, the median time from removal to TPR for adoption cases decreased from 23.4 months to 17.4 months
• Many scholars and courts also focused on expediting appeals in dependency and TPR cases.
ASFA: Focus on Permanency
• Georgia: Committee on Justice for Children
– Federally-funded child welfare improvement project.
• “When parent-child relationships remain in legal limbo, parents are unable to provide security and stability for a developing child.”
– Appeal process means families and children must put their lives on hold.
Focus on Permanency
• Result: HB 369 (2007)
• Amended OCGA § 5-6-34 and -35.
• TPRs went from being directly appealable to appealable only through discretionary application process.
– Dependency (deprivation) still directly appealed.
Focus on Permanency
• Intentions:
– Reduce number of unnecessary appeals.
• Court of Appeals grants discretionary appeals only where error appears or where the establishment of precedent is desirable.
– Reduce time to permanency.
• Discretionary application filed within 30 days of judgment, granted within 30 days of application.
• 60 days is a lot shorter than a year!
Has It Worked?
• Granted TPR discretionary appeals are down.– From an average of 50 published decisions
annually to a total of 109 granted appeals since 2010 (avg. 22/year)
• Median time from TPR to Adoption, overall, has not changed much.– 9 months in 2007-2008 (1,030 adoptions)
– 9.8 months in 2013-2014 (811 adoptions)
Has It Worked?• A bit difficult to compare given lack of info
regarding unpublished decisions prior to HB 369, but:– 304 discretionary applications filed between 2010
and 2014
– Applications ruled on in average of 22.8 days of docketing.
– 2005 to 2008: reversal rate among published decisions: 12%.
– 2010 to present: Reversal rate among published decisions is 50%, but taking into account likelihood of many more unpublished affirmances, more like 12%.
Has It Worked?
• Problems noted by practitioners and the Court of Appeals.
– Applications that don’t accurately reflect transcripts because transcript was not available when application filed. Appeals granted improvidently.
– Fact that AG’s office does not respond to applications for appeal gives the COA central staff a one-sided view of the situation.
Reviewing the Cases
• Reviewed approximately Court of Appeals 50 TPR opinions published since 2010
– Focused on those involving granted discretionary appeals and those involving the fact-intensive, “Four Factor” review.
• Former 15-11-94 (b)(4)
• Now 15-11-310 (a)(5)
Four-Factor TestThe court must find by clear and convincing evidence:
(a) That the child is dependent (formerly deprived).
(b) That the parent is the cause of the dependence or deprivation;
(c) That the dependence or deprivation is likely to continue or will not likely be remedied; and
(d) That the continued dependency or deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.
Four-Factor Test
• It is well settled that compelling facts are required to terminate parental rights.”
–In re C.G., 324 Ga. App. 110, 115, 749 S.E.2d 411, 415 (2013).
Four-Factor Test
• It is well settled that compelling facts are required to terminate parental rights.”
–In re C.G., 324 Ga. App. 110, 115, 749 S.E.2d 411, 415 (2013).
Four-Factor Test
• 2010-2012: COA
–19 affirmed, 2 reversed, 1 vacated for more findings
• 2013-present: COA
–10 of 15 reversed.
• What’s going on here?
Four-Factor Test
1. Lack of findings on specific required factors.
– Requiring findings on all four factors, especially likelihood that dependency will continue and harm.
– “I find it troubling that many of our prior decisions upholding the termination of parental rights appear to rely . . . On generalizations without specifically tying them to particularized findings of fact . . . .”
– Dillard, J., In the Int. of A.E.S., 310 Ga. App. 667 (2011)
Four-Factor Test
2. Orders that contradict transcripts
– Transcript “refuted” juvenile court’s finding that there was no bond between father and child.
• In the Int. of C.K.S., 329 Ga. App. 226 (2014).
• When do you get transcripts?
• Who is preparing the orders?
• What about delaying the final order until you have a transcript?
Four-Factor Test
3. Judicial concerns over the significance of these cases
– Parental “death penalty” – high standard
– Permanency as a goal is not in and of itself enough to permanently sever the parent-child bond.
– Merely failing a case plan isn’t sufficient
Four-Factor Test• What’s required:
– Proof of every factor by clear and convincing evidence.
– Not enough to show parental incapacity; must also show how the deficit affects the child.
– If the COA thinks DFCS or the juvenile court has not given the parent a fair shot at completing a case, plan, expect reversal
– If the juvenile court’s opinion smacks of discrimination on the basis of poverty, expect reversal.
– Even where a parent has significant issues that keep him or her from caring for the child, COA will not presume that an ongoing relationship with the parent will harm the child.
Four-Factor Test
• In Sum:
– The Court’s doing nothing that it hasn’t been doing for 20 years.
– Same statements of law.
– Difference is that because these cases are not handled by direct appeal, they are no longer reviewed as “routine” and are attracting heightened scrutiny.
• That’s my personal opinion, so take it for what it’s worth.
Recommended Improvements
1. Dealing with the transcript issue on applications.
• How to ensure it reflects the case, avoid dismissed appeals?
– Motion for New Trial to await the transcript?
– Agreed-to transcript (substitute)?
– Speeding up time to prepare transcript
• Florida: 20 days, serve notice on court reporter
– Allowing the court to review the transcript and make corrections and additions to the order?
Recommended Improvements
1. Dealing with the transcript issue on applications.
• Allowing the court to review the transcript and make corrections and additions to the order?
• OCGA §9-11-52: “Upon motion made not later than 20 days after entry of judgment, the court may make or amend its findings or make additional findings and may amend the judgment”
Recommended Improvements
2. Truly expedited appeals?
• State’s priority on appeal (OCGA § 9-10-1) and COA internal procedures insufficient
• NCJFCJ and ABA – 215 to 240 days is appropriate.
• Parental Notification Act: Resolved within two weeks.
• Florida: Cases must be decided within 60 days of briefing.
Recommended Improvements3. Attorneys
– Further complicated by B.R.F. (April 14, 2015).• Out-of-time discretionary appeal may be granted
where parent denied appellate counsel.
– Counseling clients that appeal is not warranted?
– Avoiding Bar Complaints
– Duty of Candor to the Court?
– Possible solutions:• Consultation verification
• Florida procedures.
Recommended Improvements
4. Improving understanding of the COA’s work
– We don’t know what happens to all those applications that are currently filed.
– We should be able to review them and use them to better understand what the Court of Appeals considers an error meriting reversal or requiring precedent
– OCGA §§ 15-11-700 and 15-11-704
Questions?
Tom C. RawlingsMcMillan & Rawlings, LLP
Law | Communications | Consulting
120 N. Harris St.Sandersville, GA 31082
(478) 552-2467
www.tomrawlings.com
